Holiday guest claiming from me - Prospect of strikeout?

[LakeDistrict]

Good afternoon all & thank you for maintaining this interesting community.

I own holiday cottages and let them to guests through an agreement with a holiday letting company.

The letting company facilitates the bookings and handles advertising and deals with complaints on my behalf, although, as their terms state, the contract for any booking is between myself and the guest.

I have received a court claim from a guest who arrived, decided the cottage was filthy (It wasn't) complained to the agent, who closed the case in my favour. The guest then returned home the same day.

Their claim is for three times the original amount of the rental including their whole families wages etc.

The claim form has several mistakes as to the correct rental amount and identity of the claimant(s).

I have submitted a full and detailed defence but would like to know:


Would I, in your estimation, have a good prospect of having this claim struck out as I contend that it is dispute between the booking agent and the guest, about how the guest's complaint was handled. Bearing in mind that the agent handles complaints for me, and offers (in their terms) arbitration should the guest not be happy with the decision.

The guest appears to have not accepted the agents decision on the case and decided to pursue me directly.



Many thanks for your help.

[islandgirl]

Fellow holiday cottage letter here though not via an agency! It will depend on the contract you have with the agency in my view. What does it say about disputes? Does it offer a protocol for situations when the customer does not accept arbitration? I suspect the buck will stop with you but may well be wrong!

[efpom]

No chance of a strike out on the ground that you are not the correct Defendant.

[LakeDistrict]

Thanks both,

The agent does not provide for further process post arbitration - In this situation the guest jumped straight to legal action and did not take up the agent's arbitration (which is offered by an independent company). I understand that the arbitration does create a legally binding solution and had the guest taken it up it would likely have headed off the current claim.

It is worth remembering I suppose that in the first instance the agent found this complaint in my favour and closed the case - I am hoping that, should this case eventually reach a hearing, the Judge will take it into account that it is not simply me who has refused a refund - the agent has determined that the complaint is unsuitable.

I have a defence including detailed signed and dated cleaning checklist for the day of the change over, maintenance records and guest reviews giving me 100% for cleanliness several times before the guest's arrival.

Guest claims under the consumer rights act that the cottage was not cleaned with due care and skill. My records ( dozens of points on a checklist) aim to refute that. It seems that they did not like the cottage and are attempting to bill me for that.

If there's any other advice i'd gratefully receive it.


Thanks again for your help.

[efpom]

Post up the claim - post up the defence.

[islandgirl]

How can they claim wages?? How did you handle their complaint on arrival? Did anyone go round there?

[LakeDistrict]

I'm not sure how they can claim wages - It is claimed as 'lost earning' - no further explanation to that portion of the claim. That figure is the bulk of the claim in fact.

We were informed of the complaint by the agent, guest requested re-cleaning which we denied as we (two of us) had spent 3 hours each cleaning the property less than three hours before the guest arrived. We don't live far away but explained it was no necessary to re clean the property - it's all recorded in the records.

Guest demanded refund which the agent, in consultation with us, declined.

Guest turned down goodwill amount offered by agent.

Guest launched the case shortly after with various trumped up costs.

[islandgirl]

Fair enough - I have no idea what lost wages could be! A dirty cottage would not have caused them to miss work (not saying it was dirty of course!). I had a similar allegation after someone stayed the full week - the cleaner told me of the horrific state the family left the property in when they went and I detailed this to them and heard nothing more. Some people just try it on. Any genuine complaints can be easily resolved but it seems this is just an attempt to get money from you.

[LakeDistrict]

Just an update on this....still going on:

The Judge made a 'general form of judgement or order' in which he ordered that the Claimant files and serves amended Particulars of Claim setting out a summary of the "defects in the property"

I received only a photocopy of the original claim form from the claimant with "reference copy only" watermarked through it and some photographs with their writing on - The text of the Particulars of Claim was not updated in any way and therefore I expected the claim to be struck out, the Judge asking for 'amended Particulars of Claim'.

The date of the strikeout has now passed and it appears that the claim is proceeding to a hearing, having just received an order allocating it to the small claims track and listing a hearing date. I am surprised by this.

My point is that I believe the Claimant has not complied with the Judge's order (no updated statement) and that information has been served to me in the wrong way (a reference copy of the original form)

Can I apply for the case to be struck out on those grounds, or does it look like the Judge is willing to overlook those features?

I will post further details of the case if I can be sure that the Claimant won't be able to find it.

Many thanks

Edit: The order made by the Judge (of his own volition) requiring the amended statement of particulars was an 'Unless" order, with strikeout as the penalty.

[pt2537]

You would need to make an application to the Court. Did the Judge say anything about you filing an amended defence once the claim had been amended?

I think if there is non compliance with the Courts order, an application to strike may well gain some traction, although the Court may be willing to give him a second chance. I certainly wouldnt let the case proceed on poor pleadings thats for sure.

[LakeDistrict]

Thanks for that PT2537!

I am currently reading about making an application to the Court to have the Particulars of Claim struck out on the basis of non compliance. I would have though the Judge might have automatically struck the claim out, as the Order stated. I wrote to the Court manager stating that i had not received I "updated" particulars and they forwarded me the particulars which I had already most recently received from the Claimant.

The Judge's order said that the Defendant "May file an amended Defence within 14 days of being served with the Claimants amended Particulars of Claim" That date has now passed - I did not amend the defence as I had no new information on which to base any amendment. I wanted my original defence to stand and thought amendments might weaken my stance and might show that I considered the documents sent by the Claimant to be "new information" whereby they are not.

Kind thanks for your advice so far - very much appreciated.

[LakeDistrict]

Here is the claim below as follows, without the names; This was received after the claimant obtained my address without my consent or the consent of the letting agent.

Statement of Particulars:

In an email dated 25th of October 2020 we made a formal complaint with [letting agent] and the owners of the rental property. [Letting agent] contacted us on 5th of November 2020 to inform us that the owners were not willing to offer any compensation. The email explained what was wrong with the property and why we would be entitled to a refund. We wrote to the owners again by recorded delivery on 24th of November offering to use Alternative Dispute Resolution to resolve this problem. We enclosed the original complaint letter and photographs of the state of the property. We also enclose some further photographs of the property in addition.

We wish to claim for a full refund of the purchase price of £694.00 on the grounds that we would have expected the property to have been cleaned and maintained to an acceptable standard which is was not (sic), petrol £70, shopping wasted £100, lost earning for myself and husband total £790.


The Defence:

The defendant denies each and every claim contained in the Particulars of Claim.

1. [1st defendant] and [2nd defendant ] operate guest accommodation including [the property in question] located in [village in question] and advertise via an agreement with [letting company] whereby [letting company] act as an agent.

2. The Claimant made a booking on 28.07.2020 to occupy the property between 24.10.2020 and 31/10/2020. Notification of the booking was emailed to [2nd defendant]. Figure 1 will show the notification.

3. The Defendant denies the claim for £694.00 as this figure is incorrect. The amount of £645.00 known as the gross rental price was received for the booking of which [letting agent] debited £129.00 commission plus £25.80 VAT at source. Figure 1, the Booking confirmation will show the gross rental price to be £645.00. as being £490.20. The Defendant cannot accept liability for the additional £154.80 or the £50 booking fee as [defendant] has not received the benefit of this sum.

4 [Was not submitted]

5. The Defendants were contacted by [letting agent] at 16.05 on 24.10.2020 regarding a cleanliness complaint that the Claimant had made upon arriving at the property.

6. [2nd defendant] made a note of the complaint and discussed the contents with [1st witness], Figure 3 Diary. Both expressed surprise at the complaint, having carried out their standard 92 point cleaning checklist Figure 4 between 10:35 AM and 13:00 PM on that same day. The Claimant requested a full reclean which was denied by [2nd defendant] and [1st witness], having cleaned the property three hours earlier and noting that it was completed in a satisfactory manner. Figure 5 will show statements by [2nd defendant] and [1st witness] to that effect.

7. The Defendant acknowledges their obligations under the Consumer Rights Act 2015 Figure 6, section 49 of which requires a service to be carried out with reasonable care and skill and contends that their completion of the 92 point cleaning checklist Figure 4 on 24/10/2020 demonstrates their carrying out of their obligations. Further, the Defendant shows a track record of consistently meeting these obligations in Figure 7 Checklists, their previous 17 cleaning checklists dating from 11.07.2020. Additionally a maintenance checklist Figure 8 maintains a running list of repair works.

8. The Defendant tasks [1st witness] with organising maintenance as required. He noted on the maintenance checklist Figure 8 Saturday 10.10.2020 that the upstairs bathroom grout had deteriorated and this was to be replaced on 09.11.2020 which was carried out as shown in Figure 9.

9. Further the Defendant shows in Figure 10 Guest reviews that due to the care and attention they have taken, they have consistently received excellent reviews from guests resulting in, at the time of writing, an overall feedback rating of 91 percent over the preceding 6 months. Figure 10 will also show that six previous guests provided a feedback rating of 100 percent in respect of cleanliness and that guests staying after the Claimant gave scores of 87 percent and 100 percent respectively.

10. In a call to the Claimant and later referenced by the Claimant in a email and provided to the Defendant Figure 11, [letting agent] representative [person1 ] stated We, [letting agent], cannot re-house you, the Claimant, for a few bits of hair and a speck of mould Figure 11, reinforcing the position of [2nd defendant] and [1st witness], made in Figure 5, that the complaint did not merit a refund as the property was already in a satisfactory state of cleanliness. See video of condition on 29.10.2020 after Claimants departure. The Defendant accordingly, denies the claim for £694.00

11. In an email Figure 11 sent on 25.10.2020 the day after leaving the property, the complainant threatened additional costs, should the Defendant not provide a refund. The Claimant having threatened legal action at this point rather than choosing a course of arbitration. The costs include unspecified amounts for spoiled holiday food, later referred to on the claim form as shopping wasted claimed as £100.

12. Figure 12, a photograph of the waste bin located in the dining room at the property, will show that the Claimant and their party consumed a substantial meal of frozen pizzas, referenced in Figure 11, the Claimant’s email, ..so we ate and left. The Claimant discarded this waste at the property after being informed that they were not entitled to a refund. Despite this the property remained in a clean condition overall. See video and Figure 8.

13. The Defendant contends that no financial loss of £100 has occurred as the Claimant consumed the food, the frozen pizzas, having cooked them in the oven. The food claimed to be spoiled was not in need of refrigeration and was eaten immediately, suffering no spoiling as it was neither refrigerated or transported from the property. The Defendant therefore denies the claim for £100.

14. The Defendant denies the claim lost earning for myself and husband totalling £790 as [defendant] has carried out [their] obligations to provide a service with due care and skill. The Claimant left the property of their own volition having exhausted [letting agent's] complaints procedure - the complaint being found in the Defendant’s favour. The Claimant having left the property on 24.10.2020 and returning home, was at liberty to carry out their work in the usual manner. The Defendant has not prevented the Claimant from working, either whilst they were at the property or when they returned home that day. Further, as the husband mentioned in the Particulars of Claim is not listed as a Claimant on the claim form the Defendant cannot consider his claim.

15. The Defendant denies the claim petrol £70, as above, the Claimant left the property of their own volition.

16. The Defendant denies the apportionment by the Claimant of the court fee as stated on the claim form, under CPR Rule 45 table 1, rejects the amount of £105.00 as the claim has not been drafted by a solicitor and this amount has not been apportioned by a judge.

17. The Defendant has cooperated in offering the Claimant the use of an arbitration scheme Figure 13. The Defendant believes that the facts stated in this defence are true.

[islandgirl]

The particulars say that they offered ADR which you refused - is that correct? What do the photos show? Shopping and loss of earnings rubbish in my view.

[LakeDistrict]

They're not correct about that. They were offered ADR by the letting agent but turned it down (have written confirmation) to my mind so that they could ask me for an inflated amount of money - something ADR doesn't allow, only the initial sum will be considered I believe.

I further offered them ADR and in my letter gave detailed directions on how to access it including a typed out link to an online form for them to use. They were not interested in using it, having turned out down twice, presumably unwilling to pay the requisite fee by which time they had begun this litigation.

The photos show a dead spider, small amount of dust and some crushed plastic that the guest planted on the floor annotated with red arrows and emotive words like 'disgusting' and 'horrible'.

Thank you for your comment.

[islandgirl]

Hi Lakedistrict - good news re ADR - courts like it and it is excellent that it was offered by you and refused by them and that you can prove it. I agree - they wanted to claim the whole Loss of Earnings thing. It is amazing that they claim that you refused and they offered. The photos do not seem to justify the claim at all. Crushed plastic? Pizza wrappers perhaps from their meal! It sounds like you have a strong case but these things are unpredictable. I hope that you are able to get it struck out (I have no idea on that - my court experience is criminal not civil) but as a fellow holiday home owner I am watching with interest and wish you well.